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Column ‘The current situation of the Supreme Court is unsustainable’

Chief Justice Susan Denham pays tribute to the Constitution on its 75th birthday – and examines the case for a drastic overhaul of Ireland’s judicial system.

THE 75TH ANNIVERSARY of the enactment of the Constitution is a milestone to be acknowledged and celebrated. As our Basic Law there is much to appreciate in the Constitution of Ireland.

In doing so I am mindful of the environment of 1937 within which the Constitution was framed. At this time an increasing sense of despair descended across continental Europe. Many countries were experiencing suffering and hardship during the Great Depression. Alignments were being made in advance of World War II. In this political climate human rights were not a priority.

Against this backdrop, our young country, on the edge of Europe, was in the process of enacting a Basic Law which propounded legally enforcable rights, and imposed upon the State the obligation to guarantee and to defend those rights.

The driving concept of the Constitution is the sovereignty of the People and that all powers of government come from them. There is much to admire in the Constitution – to even be “startled” by – when one ponders many of its innovations created in the midst of 1930s Europe. For this reason the document is a prescient Constitution.

A role model for abroad

This prescience is best illustrated by a number of examples. Many of the Fundamental Rights included in 1937 Constitution were ahead of their time. Five of the fifty articles of the Constitution are devoted to Fundamental Rights. In the years following World War II the international community adopted international instruments such as the United Nations Charter and the Universal Declaration of Human Rights which proclaimed many of the fundamental rights which were already contained in the Irish Constitution.

Likewise, the Directive Principles of Social Policy which are directed to the Oireachtas have come to be adopted in other constitutions enacted after 1937 in various jurisdictions.

Article 40.3 of the Constitution has been interpreted by the Courts as protecting unenumerated rights which are not written in the constitutional text. The Constitution is interpreted by the judiciary as a living entity to reflect the contemporary times of the Irish People. It is a Living Constitution reflecting today’s reality as much as that of 1937.

In the Preamble of the Constitution the dignity of the person is a central concept and the right to human dignity is now a part of human rights law at an international and European level. Indeed, this very Irish concept of dignity is contained in 80 per cent of constitutions adopted since WWII.

The centrality of dignity goes back to the Brehon Laws which made it an offence to shame a person, particularly those with a disability. This emphasises the long history and importance of dignity in Irish law and our heralding the concept to the world through our history, emigration and constitution.

Likewise the Constitution ensures Judicial review is entrusted to the High Court and the Supreme Court and so Ireland led the common law world in 1937 by expressly providing for it in Article 34.3.2 of the Constitution.

An example of forward thinking

The Supreme Court recently held in Damache v. DPP that section 29(1) of the Offences against the State Act 1939, as inserted by section 5 of the Criminal Law Act 1976, was repugnant to Article 40.5 of the Constitution.

In 2001, the German Constitutional Court illustrated a very similar reasoning process to that in the Damache case, in upholding the constitutional right of the inviolability of the dwelling as outlined in Article 13 of the German Basic Law, the Grundgesetz.

This illustrates how two European courts arrived at a similar conclusion without reference to each other, in upholding the constitutional right of inviolability of the dwelling. It shows how prescient and forward thinking the drafters of our Constitution where.

The future shape of Ireland’s Superior Courts

The drafters of Bunreacht na hÉireann had considered establishing a Constitutional Court in addition to the High Court and the Supreme Court. There is documentary evidence to suggest that De Valera also considered altering the courts structure in place at the time.

Article 34 of the Constitution establishes the High Court as a Court of First Instance and the Supreme Court as the Court of Final Appeal. Article 34.3.4 provides for the establishment of courts of local and limited jurisdiction. There is no express provision enabling the Oireachtas to establish other courts. This is in stark contrast to the situation in other common law jurisdictions. In these jurisdictions, Parliament is vested with the power to establish such courts.

The drafters of the Constitution could never have anticipated the growth in the volume of litigation, its complexity and diversity, throughout the legal system. Litigation reflects the radical changes in society which have occurred in Ireland in the last 75 years, especially in the last 25 years. The court structure required in 2012 is different to that of 1937.

To date in 2012 a total of 255 new appeals have been filed with the Supreme Court, which confirms that the upward trend in its caseload continues and that in the region of 500 new appeals will likely be lodged this year. There are 486 appeals in the general list ready for hearing. It is estimated it would take the Court three and a half years just to hear and decide all of the appeals now lodged. Even priority cases wait nine months.

A growing workload – and an unsustainable future

Under the Constitution there is effectively an automatic right of appeal to the Supreme Court from the High Court in most civil cases. A troubling feature recently is that there is evidence that even High Court case management directions are now being appealed in some of the very complex and lengthy commercial and fiscal cases before the High Court.

The current situation of the Supreme Court is unsustainable.

For a number of years, I have advocated the establishment of a Court of Appeal set between the High Court and the Supreme Court. This would transform Ireland’s courts structure and bring about tangible benefits, including a decrease in waiting times for litigants, improve conditions for commerce, which in turn would aid economic growth and development.

Our Supreme Court, as in every other common law jurisdiction, could then focus on cases relating to constitutional law or to cases of exceptional public importance. The Government has committed to the establishment of a Court of Appeal in its Programme for Government 2011-2016.

However, this matter may be viewed in a wider context, taking into consideration the possibility and benefit of other courts also. We need to look into the future and beyond the establishment of a Court of Appeal.

Ireland stands alone

Ireland would appear to be unique in terms of amending the Superior Courts structure. For example in Australia, Parliament has created the Federal Family Court which is a specialist superior court of record. It deals with more complex family law matters and support services such as counselling and mediation are available to litigants.

At present family law issues in this country are dealt with for the most part by the District Court and the Circuit Court, at a time when Courts Service figures show that there has been a very significant increase across the board in family law cases.

The Programme for Government 2011-2016 also commits to the introduction of a constitutional amendment to allow for the establishment of a distinct and separate system of family courts to streamline family law court processes and make them more efficient and less costly, as soon as resources as permit.

Thus, I believe there is merit in looking at the needs of the court structure in a wider context, and bearing in mind future potential needs. Therefore, rather than a specific amendment for a specific court, perhaps consideration should be given to an amendment giving to the Oireachtas the power to establish courts other than those of limited and local jurisdiction.

Such an amendment to the Constitution could ask the People in a referendum the fundamental question:

‘Do you approve that the Oireachtas be given the power to establish additional courts, including courts of superior jurisdiction, for the administration of the laws of Ireland?’

In this way other new superior courts could then be established, as in other jurisdictions, to administer law in specific areas including maybe a dedicated environmental law court.

A debt of gratitude to those who went before

We owe a debt of gratitude to the drafters of the Constitution – for this living instrument, which is at the core of our society. As Chief Justice, on this the 75th anniversary of our Constitution, I want to acknowledge the drafters of the Constitution who provided legal advice to De Valera. These include Philip O’Donoghue, Michael McDunphy, Stephen Anselm Roche, Maurice Moynihan and John J Hearne.

De Valera described Hearne as the “Architect in Chief and Draftsman of this Constitution”. This native of Waterford might be seen as Ireland’s Thomas Jefferson.

The Constitution has provided the basic legal framework to the Irish People. However, time does not stand still and its inexorable passage undoubtedly raises new challenges. It is the People who will ultimately decide on how best to confront such challenges.

A present day challenge, which I have outlined here, is the structure of our superior courts which the Government has indicated will be considered by the People.

Justice Susan Denham is the Chief Justice of Ireland. This is an abridged version of a speech delivered last night to the UCD Constitutional Studies Group conference on ‘The Irish Constitution: Past, Present and Future’.

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